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How to prevent illegal working when hiring foreign nationals

An essential part of the recruitment process is to ensure that any applicant is entitled to work in the UK. Check your employees have the right to work and ensure you stay on the right side of the law.

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What the law says It is a criminal offence for you to employ someone aged 16 or over who has no right to work in the United Kingdom. The law gives employers a statutory defence against conviction for employing an illegal worker, which is that they can prove they have checked and copied certain original documents, which you should ask your employee to produce.

Penalties

The maximum penalty for knowingly hiring illegal workers is an unlimited fine and a possible two year custodial sentence. The maximum penalty for hiring an illegal worker due to failing to carry out the required checks is now £20,000 per worker.

How to comply

It is important that you have thorough HR policies in place to ensure you check your prospective employees' rights to work in the UK, regardless of where they are from. A checklist can help you to ensure compliance with the following three-step process.

1. Obtain

Ask all potential employees to show you either one or a combination of original documents as set out in the specified documents lists (A and B). If the individual is not subject to immigration control, or has no restrictions on their stay in the UK, they should be able to produce a document, or a specified combination of documents from List A.

Where leave to enter or remain in the UK granted to your employee is limited, the document or documents provided will be specified in List B. You must see both documents in the combination list to have a defence. You should carry out document checks before employment begins and at least every 12 months after.

2. Check

Ensure that all photographs match the appearance of your employee, all dates of birth and signatures match, and that the expiry dates of leave to enter or remain in the UK have not passed. If the family name or other personal details on the two documents you check do not match then you must obtain further proof of the reason for any difference between the two documents produced.

3. Save

Make sure you save copies of all original documents. Take a copy of the relevant pages of the document in a format which cannot be subsequently altered.

European workers

Nationals of countries in the European Economic Area (EEA) and Switzerland can live and work in the UK without any restrictions. Find a full list on the Border Agency website.

Visa restrictions

While an employee may have a visa giving them the right to work in the UK, there may be some restrictions placed on this. For example, students may only be able to work in term time and for a limited number of hours.

If a worker has a lapsed visa or their circumstances have changed and they are currently applying for a new visa, their old visa is not sufficient proof of the right to work in the UK.

Forum members can download a free illegal working checklist, including an extract from our Employment Guide on preventing illegal working. Forum members can also call our helpline with any employment law query on 0845 130 1722.

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